Jurd v The King - [2024] VSCA 224

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0060

DAVID JURD	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST and NIALL JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	12 August 2024
DATE OF JUDGMENT:	7 October 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 224
JUDGMENT APPEALED FROM:	DPP v Jurd (County Court of Victoria, Judge Higham, 7 March 2024)

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CRIMINAL LAW – Appeal – Sentence – Trafficking drug of dependence, possession of drug of dependence, knowingly dealing with proceeds of crime, handling stolen goods and related summary offences – Applicant sentenced to drug and alcohol treatment order – Custodial sentence activated on basis that applicant unwilling to comply with order – Whether judge gave adequate reasons – Reasons insufficient to expose path of reasoning – Leave to appeal granted – Appeal allowed – Sentence set aside.

Sentencing Act 1991, ss 18X–18ZS.

Chief Commissioner of Police v Crupi (2024) 98 ALJR 1131, considered.

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Counsel
Applicant:		Ms G Connelly SC with Ms A Balkin
Respondent:		Ms K Hamill with Mr E Fryar
Solicitors
Applicant:	Rolfe Criminal Law
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA:

I agree with the orders proposed by Niall JA and his Honour’s reasons therefor.

NIALL JA:

Introduction

On 18 October 2022, the applicant, now aged 33 years,[1] pleaded guilty to a number of serious drug charges, namely one charge of trafficking a drug of dependence,[2] one charge of possession of a drug of dependence,[3] one charge of knowingly dealing with proceeds of crime,[4] one charge of handling stolen goods[5] and three related summary offences.
[1]Date of birth: 7 April 1991.
[2]Contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981.
[3]Contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981.
[4]Contrary to s 194 of the Crimes Act 1958.
[5]Contrary to s 88 of the Crimes Act 1958.
Following a Drug Court determination hearing on 10 October 2022, Judge Gaynor sentenced the applicant on 18 October 2022 and placed him on a Drug and Alcohol Treatment Order (‘DATO’) for a period of 45 months. The custodial aspect of the DATO, which is not served unless activated,[6] was as follows:
[6] Sentencing Act 1991, s 18ZE(1).

Charge Offence Maximum Sentence Cumulation

Indictment M11928942

1 Trafficking in a drug of dependence 15 years’ imprisonment 3 years Base

2 Possession of a drug of dependence 1 year imprisonment or 30 penalty units 12 months 3 months

3 Knowingly dealing with proceeds of crime 20 years’ imprisonment 12 months 3 months

4 Handling stolen goods 15 years’ imprisonment 9 months 1 month

Related Summary Offences

20 Possess prohibited weapon[7]
240 penalty

units of 2 years’ imprisonment
2 months N/A

22 Possess Schedule 4 poison[8] 10 penalty units Fined $400 N/A

25 Fail to comply with direction to provide
information or assistance[9] 2 years’ imprisonment 6 months 2 months
[7]Contrary to s 5AA of the Control of Weapons Act 1990.
[8]Contrary to s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jurd v The King

Details

AGLC: Jurd v The King [2024] VSCA 224
Case: [2024] VSCA 224
Decision Date: 7 October 2024

CaseChat Overview and Summary

Jurd v The King involved the appellant, who was convicted of trafficking, possession of a drug of dependence, knowingly dealing with the proceeds of crime, handling stolen goods, and related summary offences. The appellant was sentenced to a drug and alcohol treatment order, with a custodial sentence to be activated if the appellant was unwilling to comply with the treatment order. The appellant's appeal against sentence was heard in the Court of Appeal of the Supreme Court of Victoria. The appeal focused on the adequacy of the reasons provided by the trial judge for activating the custodial sentence.

The court had to determine whether the trial judge gave adequate reasons for activating the custodial sentence, as required by section 18X of the Sentencing Act 1991. The court considered whether the reasons provided by the trial judge were sufficient to expose the path of reasoning leading to the conclusion that the appellant was unwilling to comply with the treatment order. The court also examined the case of Chief Commissioner of Police v Crupi, which had previously considered the adequacy of reasons for activating a custodial sentence in similar circumstances.

The Court of Appeal found that the reasons given by the trial judge were insufficient to expose the path of reasoning. The court held that the reasons did not clearly demonstrate the trial judge's thought process and did not provide adequate insight into the trial judge's assessment of the appellant's willingness to comply with the treatment order. The court concluded that the trial judge's reasons were inadequate, and as a result, the appeal was allowed, and the sentence was set aside.

Orders